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What on earth is a provisional waiver?: How the Provisional Waiver changes the Immigration game.

What on earth is a provisional waiver?: How the Provisional Waiver changes the Immigration game.

Neil F. Lewis, Esq.


In an effort to keep families together and to streamline and regulate the approval of waivers of inadmissibility, the Department of Homeland Security issued new regulations allowing the filing of a provisional waiver for certain inadmissible persons, starting March 4, 2013.

An inadmissible alien is an immigrant who is not eligible to adjust his status (i.e., get his lawful permanent residence) in the US. This could be for many reasons, including criminal, illegal entry, fraud, and drug problems. In every case until March 4, 2013, in order to have a waiver of unlawful presence considered, an illegal entrant would have to be in his native country waiting for an answer. The answers and the timelines for an answer would vary from Embassy to Embassy. Most immigrants who received their green card in this manner stayed out of the US for 1 to 2 years before they were able to return. And the torture they endured is that they did not always know whether or not they would return.

That harsh period of separation will still apply to those applying for a waiver for criminal or fraud reasons, and for those who have been deported before. But for those who need a waiver of inadmissibility solely because of unlawful presence in the US, the new waiver process is available.

Basically this provisional waiver is for illegal entrants from Central and South America who have been in the US without permission for longer than one year (immigrants present in the US after being legally admitted who get married to a US citizen get their green cards in the US without too much trouble). To qualify to file for the waiver in the US, the applicant must be present in the US, and the only ground of inadmissibility he is subject to must be based on unlawful presence. The applicant must have an approved immediate relative petition from a husband or wife, his case must be pending at the National Visa Center after the immigrant visa processing fee was paid, and the applicant must prove extreme hardship to a US citizen spouse or parent.

Some people who may not apply for this waiver are parents of US citizens. Because of the vagaries of immigration law, parents of US citizens are not eligible for the waiver of unlawful presence.

Children under 18 are not eligible for the waiver, neither do they need it as one cannot accrue unlawful presence until one is 18. So if I have a US citizen with an illegal son, that son may apply for his green card at the Embassy in his native country, and as long as he is under 18, he is issued his green card and he comes back immediately to resume residence.

People who are currently in removal proceedings can apply for the waiver eventually. But they cannot apply for the waiver until they have their court cases terminated or administratively enclosed. Anyone who has been removed before is not eligible for the waiver.

People who currently have interviews abroad at US embassies who have not yet left the US may file for the waiver only if they file a brand-new I-130 petition and proceed from that.

You will be happy to know that CIS considers separating any husband and wife to be hardship. For extreme hardship an alien must typically show that according to the following criteria the hardship in their case would be extreme:

n  The presence of lawful permanent resident/US citizen family ties in the US;

n  the alien applicants family ties outside the US;

n  country conditions in the country of relocation and the qualifying relative’s (should be the spouse who applied for the waiver) ties to that country;

n  the financial impact of departure;

n  significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

Immigration will seriously look at any evidence you have of hardship in the case. They look at age, length of residence in the US, health, technical skills, and employability. The language of the law does not allow hardship to US citizen/lawful permanent resident children to be counted, but you should certainly mention it. The hardship to the children is relevant as in how it would affect the hardship to the US citizen petitioner.

A smart applicant as well includes a letter from the alien whose legal violation requires the waiver. My clients explain who they are and why they had to come to the US when they came here. You will find immigrants are not here by accident and most of them had a great fire burning in them to come to the US. Generally the purpose of the trip is altruistic as well, and is done for the benefit of family or friends, and not for oneself. If this is true, it should certainly be mentioned.

The waiver will be filed on the yet to come form I-601A (why we need the new form, when we already have a form for the waiver, I have no idea — these people really like creating forms). It will be available at www.uscis.gov It will be filed and adjudicated in the US, and processing times are optimistically projected at six months, which is a vast improvement on waivers in the past.

Because of these changes, US citizens who are married to illegal entrants and are living with them in the US will no longer be separated while having the waiver considered. They may file the I-130, get it approved, the case will be transferred to the National Visa Center, they will make a choice of agent and pay the immigrant visa fee, and then file the I-601A waiver. Once the provisional waiver is approved, we would resume immigrant visa processing is usual, scheduling interview at the Embassy abroad and sending my client to get his green card.

As there are things to take care of before the waiver is applied for, a smart immigration attorney will be encouraging his eligible clients to start the I-130 process immediately, so that they can be among the first to file for the new waiver. Anyone who has a case currently pending at the NVC should absolutely make sure that they file for the waiver within the first week of March 2013. We have no idea how many applications will be filed, or how long they will take to process, but I know getting an early is a good idea.

Neil F. Lewis has been an immigration lawyer in Tampa Florida since 1996. He is a former Marine and a graduate of law school at the College of William and Mary. He is a proud father of two sons, Jackson, seven, and William, six. Neil loves being an immigration lawyer and enjoys reuniting families and solving problems.

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